Warner: Filibuster of shield law will fail

Sen. Mark Warner, D-Va., wants to see the federal shield law come to the floor of the Senate for discussion. Any filibuster will fail, he said, predicting that the measure will attract the 60 votes needed for cloture, including his.

The Free Flow of Information Act, S. 987, passed the Senate Judiciary Committee last September on a bipartisan 13-5 vote. There currently is no federal protection for journalists and their confidential sources; the bill would establish a qualified reporter’s privilege at the federal level.

Senate leaders have been waiting until they are sure that the bill will survive a filibuster before bringing it to the floor. Currently an estimated 54-55 senators, both Democrats and Republicans, have agreed to vote for cloture, the procedure for ending a filibuster. Sen. John Cornyn, R-Tex., opposes the measure and is expected to try to stop it.

Warner appeared at a roundtable in Richmond July 2 with the board of the Virginia Coalition for Open Government (Disclosure: I am a member of this board).

“I think there should be a media shield law,” Warner said, acknowledging that he has not followed the current bill closely. “Intellectually, I’m for it,” he said.

“There needs to be a debate,” he added. As a member of the Senate Intelligence Committee, he said he “had seen the very real damage” Edward Snowden had done “to the U.S. and those allied with us” with his revelations about the National Security Agency.

“How do we balance that in an open society?” he asked. “It’s a fair question.”

He noted to the VCOG board the questions about who would be covered as a “journalist” and the limits of the shield.

The issue of who is covered by the FFIA was vetted in the Judiciary Committee, with a compromise reached last fall by Sen. Diane Feinstein, D-Calif., and other senators. Under the bill, the person providing information obtained from a confidential source must have the primary intent to gather news and deliver it to the public; he or she must have a current relationship with a news entity or a past track record of free-lancing. The bill provides a safety valve that allows a federal judge to determine if someone is covered in cases that are not clear. Also, the bill does not provide a shield for confidential information related to terrorism or national security.

Asked whether the bill will make it to the floor, Warner said, “Will it be filibustered? Absolutely.”

But that effort will fail, he indicated. “I’ll vote for cloture and there will be 60 votes,” he said.